U.S. Commerce Secretary Wilbur Ross
By Jeffrey M. Wice
The 2020 Census is fast becoming one of the most litigated, even before the actual enumeration has started. Six lawsuits over the addition of a citizenship question to the 2020 questionnaire are currently pending before federal courts in California, Maryland and New York. Also pending before a Maryland federal court is a case alleging that the federal Commerce Department’s Census Bureau is inadequately prepared to conduct the 2020 Census due to delayed program tests, insufficient funding and staff shortages, likely resulting in severe undercount of minorities. In an Alabama federal court, that state’s attorney general and a member of Congress are challenging the Census Bureau’s decision to include all U.S. residents in the numbers used for congressional apportionment.
Two of the citizenship question cases are before New York Southern District Federal Judge Jesse Furman. Both are on fast tracks, with trials expected by late October or early November (unless Judge Furman grants the U.S. government’s motion to dismiss the case, which he said could come sometime in July).
The 2020 Census is fast becoming one of the most litigated, even before the actual enumeration has started. Six lawsuits over the addition of a citizenship question to the 2020 questionnaire are currently pending before federal courts in California, Maryland and New York.
In the first case, New York, joined by sixteen states, seven cities, and the United States Conference of Mayors, alleges that the citizenship question is unconstitutional for undermining the census count with a question many people fearful of government won’t answer. The case also argues that the Commerce Department violated the federal Administrative Procedures Act. In the second New York case, the New York Immigration Coalition (NYIC) raises the same constitutional claims as well as a claim that the Commerce Department acted with ill intent to add the citizenship question which threatens census accuracy and worsens census undercounting of minority communities. The two cases have been consolidated for purposes of scheduling and pretrial discovery.
During a July 3rd hearing, Judge Furman considered arguments by the Department of Commerce and the New York State Attorney General’s Office about whether to dismiss the state’s challenge to the citizenship question and about whether to permit discovery to proceed so the plaintiffs could seek more information about how the federal government’s decision to add the citizenship question was determined.
At the hearing, the sequence of federal government decision making was reviewed. In a March 26th memorandum, Commerce Secretary Wilbur Ross had approved adding the citizenship question, maintaining that the question would “provide DOJ with the most complete and accurate CVAP (citizen voting age population) data in response to its request.” 
Secretary Ross testified before Congress in March 2018 that he approved the question after the United Stated Department of Justice originally requested it last December for better Voting Rights Act enforcement. In a memorandum Ross filed with the court on June 21st, however, he indicated that he actually first thought of adding the question months earlier in 2017, well before the Justice Department’s request.
To put these cases in perspective, litigation over the census is not new to New York. Following the 1980 census, in Carey v. Klutznick, the 2nd Circuit Court of Appeals ruled that New York’s challenge seeking to adjust the census through statistical sampling could not proceed without adding the 49 other states that would also be affected. Litigation before the 1990 census challenged census undercounting and the disproportionate effect it would have on minority groups.
Judge Furman appeared troubled over whether Secretary Ross may have considered adding the citizenship question before being approached by the Justice Department.
For the time being, Judge Furman has limited the scope of discovery to officials of the Departments of Commerce and Justice. He left open for a later decision whether to permit discovery from other officials, which could include White House and other agency officials active in voting law efforts.
To put these cases in perspective, litigation over the census is not new to New York. Following the 1980 Census, in Carey v. Klutznick, the 2nd Circuit Court of Appeals ruled that New York’s challenge seeking to adjust the census through statistical sampling could not proceed without adding the forty-nine other states that would also be affected. Litigation before the 1990 Census challenged census undercounting and the disproportionate effect it would have on minority groups. In this case, New York sought to have a statistical adjustment made to the final census count based on post-census surveys. While the Commerce Department agreed to conduct the surveys, it refused to report statistically adjusted counts as official census counts.
After the 1990 Census, in Wisconsin v. City of New York the U.S. Supreme Court upheld another similar decision by the Commerce secretary when it ruled that the secretary’s decision was within his power and that it bore “a reasonable relationship” to constitutional requirements.
While earlier federal court decisions have rejected challenges to decisions made by the Commerce Secretary because he used the discretion granted to him by the Constitution and delegated by Congress, this year’s challenges may be different.
While earlier federal court decisions have rejected challenges to decisions made by the Commerce Secretary because he used the discretion granted to him by the Constitution and delegated by Congress, this year’s challenges may be different. In addition to the constitutional challenges presented by the citizenship question, the lawsuits also argue violations of process and procedure. They also question whether the Commerce Department failed to follow federal rules and procedures by rushing to include a citizenship question at the last possible moment, against the recommendations of the Census Bureau’s professional staff and without adequate public comment and review.
Timing on the current litigation is tight. The 2020 Census forms will be printed during late spring or early summer of 2019. Even if Judge Furman and the other judges render decisions by November or December 2018, each appeal would have to be presented to, heard and decided by the federal appellate court. Appellate decisions could then be challenged before the U.S. Supreme Court, which might be pressed to make a decision before adjourning its term in June 2019.
Much is at stake in these two New York cases and the other pending census lawsuits around the country. Census data have significant impacts on fair representation, federal funding allocations, and other matters. Stay tuned for developments in these lawsuits in the months ahead.
 California v. Ross, https://www.brennancenter.org/sites/default/files/legal-work/CA_v_Ross_Complaint.pdf; New York et al. v. Department of Commerce, https://www.brennancenter.org/sites/default/files/legal-work/New-York-et-al_v_Department_of_Commerce_Complaint.pdf; Kravitz v. Department of Commerce, https://www.brennancenter.org/sites/default/files/legal-work/Kravitz%20v.%20Department%20of%20Commerce%20–%20Complaint.pdf; City of San Jose v. Ross, https://www.brennancenter.org/sites/default/files/legal-work/San_Jose_v_Ross_Complaint.pdf; La Union Del Pubelo Entero v. Ross, https://www.brennancenter.org/sites/default/files/legal-work/LUPE_v_Ross_Complaint.pdf; NY Immigration Coal. v. United States Dep’t of Commerce, https://www.brennancenter.org/sites/default/files/legal-work/NYIC_v_Dept-of-Commerce_Complaint.pdf
 NAACP v. Bureau of the Census, https://www.brennancenter.org/sites/default/files/legal-work/NAACP_v_Bureau-of-the-Census_Complaint.pdf
 Alabama v. United States Dep’t of Commerce, https://www.brennancenter.org/sites/default/files/legal-work/Alabama_v_Dept-of-Commerce_Complaint.pdf
 Memo from US Department of Commerce Secretary Wilbur Ross to Karen Dunn Kelley, under secretary for economic affairs, March 26, 2018.
 Carey v. Klutznick, 652 F.2d 617 (6th Cir. 1981), https://www.leagle.com/decision/19811269652f2d61711155
 Wisconsin v. City of New York, 517 U.S. 1 (1996), https://supreme.justia.com/cases/federal/us/517/1/